UNITED STATES V. ASERACARE, INC. DYING FOR REIMBURSEMENT: WHEN DOES A HOSPICE CLAIM FOR MEDICARE REIMBURSEMENT VIOLATE THE FALSE CLAIMS ACT?

Ashley Sineath

Photo Credit: https://perma.cc/K3R2-VZAM

In an issue of first impression among the federal circuits, the 11th Circuit articulated new standards for determining when claims for Medicare reimbursement for hospice violate the False Claims Act (FCA).  Per this opinion, any challenge to such hospice claims for Medicare reimbursement must now meet a new objective falsehood standard.  This new objective falsehood standard necessitates that potential plaintiffs point to specific facts and circumstances surrounding the time the physician certified the patient as terminally ill.  Absent a showing of falsity regarding these circumstances, physicians’ clinical judgments will be upheld as long as they exercised their best judgment and provided the appropriate documentation under the statutory and regulatory requirements.  The objective falsehood standard bars plaintiffs from relying on a mere difference of opinion between physician reviews of the claims to show a violation of the FCA.

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